Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, WP(C).No.25768 OF 2020(U) PETITIONER: VINOD, AGED 36 YEARS S/O. LATE K.N. KRISHNAN KUTTY, BINDU BHAVAN, KUTTAMANGALAM P.O, KAINAKARI, ALAPPUZHA, PIN - 688501. BY ADVS. SRI.C.S.MANU SRI.C.A.ANUPAMAN SRI.T.B.SIVAPRASAD SHRI.S.K.PREMRAJ SRI.C.Y.VIJAY KUMAR SMT.MANJU E.R. SHRI.ANANDHU SATHEESH RESPONDENTS: 1 RETURNING OFFICER G-28, KAINAKARI GRAMA PANCHAYATH, ASSISTANT EXECUTIVE ENGINEER, MINOR IRRIGATION SUB-DIVISION, MANKOMBU P.O, ALAPPUZHA, PIN - 688505. 2 DISTRICT COLLECTOR, COLLECTORATE, CIVIL STATION, ALAPPUZHA, PIN - 688001. 3 STATE ELECTION COMMISSIONER, KERALA STATE ELECTION COMMISSION, VIKAS BHAVAN P.O, THIRUVANANTHAPURAM, PIN - 695033. 25786 of 2020 2 4 K.A.PRAMOD, S/O. ANANDAN, KUPPICHERRY CHIRA, KUTTAMANGALAM P.O., KAINAKARY, ALAPPUZHA, PIN 688501. R3 BY SHRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R4 BY ADV. SRI.M.SASINDRAN SRI. C.M. NAZAR SPL. GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2020, ALONG WITH WP(C).25786/2020(W), THE COURT ON 18-12-2020 DELIVERED THE FOLLOWING: 25786 of 2020 3
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR FRIDAY, THE 18TH DAY OF DECEMBER 2020 / 27TH AGRAHAYANA, WP(C).No.25786 OF 2020(W) PETITIONERS: AJESH, AGED 39 YEARS S/O. BHASURAN, KANIPPARAMBIL, KUTTAMANGALAM P.O, KAINAKARY, KUTTANAD, ALAPPUZHA BY ADVS. SRI.B.PRAMOD SMT.NAMITHA JYOTHISH RESPONDENTS:
1 THE KERALA STATE ELECTION COMMISSION OFFICE OF THE STATE ELECTION COMMISSION, CORPORATION OFFICE COMPLEX, LMS JUNCTION, PALAYAM, THIRUVANANTHAPURAM 695 033 REPRESENTED BY ITS SECRETARY 2 THE RETURNING OFFICER, G-28, KAINAKARY GRAMA PANCHAYATH, (ASSISTANT EXECUTIVE ENGINEER, MINOR IRRIGATION SUB DIVISION) MANKOMPU KUTTANAD, ALAPPUZHA, PIN 685 508 3 K.A.PRAMOD, S/O. ANANDAN, KUPPISSERIL CHIRA, KUTTAMANGALAM P.O., KAINAKARY, ALAPPUZHA, PIN 688501.
25786 of 2020 4 R1 BY SHRI.MURALI PURUSHOTHAMAN, SC,K.S.E.COMM R3 BY ADV. M.SASINDRAN SRI. C.M. NAZAR SPL. GP THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02-12-2020, ALONG WITH WP(C).25768/2020(U), THE COURT ON 18-12-2020 DELIVERED THE FOLLOWING: 25786 of 2020 5 C.R.
P.B.SURESH KUMAR, J.
----------------------------------------------- Writ Petition (C) Nos.25768 & 25786 of 2020 ------------------------------------------------------------ Dated this the 18th day of December, 2020
JUDGMENT
The questions arising for consideration in these writ petitions being common, they are disposed of by this common judgment. The matters relate to the election to Kainakary Grama Panchayat (the Panchayat). The parties and exhibits are referred to in this judgment, unless otherwise mentioned, as they appear in W.P.(C) No.25786 of 2020.
2. The petitioner in W.P.(C) No.25786 of 2020 is a
resident of Ward No.3 of the Panchayat. He filed nomination to contest the election to the Panchayat from Ward No.2. His nomination was rejected by the Returning Officer on the ground that the part of electoral roll produced by the petitioner along with the nomination was not certified by the Assistant Returning Officer in terms of Section
25786 of 2020 6 55(7) of the Kerala Panchayat Raj Act, 1994 (the Act). Ext.P3 is the
decision of the Returning Officer. The case of the petitioner is that there is no such requirement in Section 55(7) of the Act and the requirement in Section 52(5) of the Act is only that where the candidate is an elector of a different constituency, a copy of the electoral roll of that constituency or the relevant part thereof or a certified copy of the relevant entries in such roll shall be produced either along with the nomination or at the time of scrutiny. It is also the case of the petitioner that since he has produced along with the nomination the relevant part of the electoral roll of Ward No.3, his nomination was in order. It is stated by the petitioner that the Returning Officer has rejected the nominations of all candidates of Ward No.2 except that of two candidates belonging to the political party CPI(M), and immediately after rejection of the nominations of the candidates, one among the candidates fielded by the political party CPI(M) as their dummy candidate has withdrawn his nomination and the Returning Officer has consequently declared the remaining candidate namely, the third respondent, as duly elected. Ext.P7 is the certificate issued by the Returning Officer in this regard. Exts.P3 and
P7 are under challenge in the writ petition. The facts in W.P.(C) 25786 of 2020 7
No.25768 of 2020 are identical. The petitioner therein is another resident of Ward No.3 who filed nomination to contest the election to the Panchayat from Ward No.2. His nomination was also rejected on the same ground. The grounds raised and relief sought by the petitioner in W.P.(C) No. 25768 of 2020 are also one and the same.
3. The main contention taken by the third respondent in
the counter affidavits filed in the matters is that the writ petitions are not maintainable in the light of the bar under Article 243-O(b) of the Constitution. As regards the merits of the matters, the contention of the third respondent is that the decision of the Returning Officer in rejecting nominations of the petitioners is in order, since it was obligatory for the petitioners in terms of the provisions of the Act to produce an attested copy of the electoral roll of the constituency where they reside.
4. Heard the learned counsel for the petitioners, the learned Standing Counsel for the State Election Commission as also the learned counsel for the third respondent, the returned candidate.
5. Placing reliance on the decisions of the Apex Court in Mohinder Singh Gill and Another v. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851 and Manda Jaganath 25786 of 2020 8
v. K.S. Rathnam and Others, AIR 2004 SC 3600, the learned counsel for the petitioners contended that what is banned in terms of Article 243-O(b) of the Constitution is not anything whatsoever done, or directed by the Election Commission, but everything the Election Commission does or directs in furtherance of the election, not contrariwise. According to the learned counsel, if a functionary under the Election Commission does something to stultify the election as
done in the case on hand by rejecting the nominations of all candidates except that of the candidates belonging to one political party, the bar under the said constitutional provision does not apply. It was also contended by the learned counsel, placing reliance on the decision of the Apex Court in Election Commission of India v.
Ashok Kumar, (2000) 8 SCC 216 that without interrupting, obstructing or delaying the progress of the election proceedings, judicial intervention is permissible to remove the obstacles of the election. As regards the merits, the learned counsel for the petitioners argued that the decision of the Returning Officer in rejecting the nominations of the petitioners is per se erroneous, for there is no such requirement in the Act as stated in the impugned order. It was also argued by the learned counsel for the petitioners that the Returning
25786 of 2020 9 Officer has acted hand in glove with the leaders of the political party CPI(M), and the decision to reject the nominations of the petitioners was part of the conspiracy hatched between them, so as to enable the candidate fielded by that political party to get a walkover in the election.
6. Per contra, the learned Standing Counsel for the State Election Commission as also the learned counsel for the third respondent contended that the case on hand is not one that would fall
within the exceptional situations where judicial intervention is permissible. The learned counsel for the third respondent also supported the decision of the Returning Officer.
7. There is considerable force in the contention raised
by the petitioners that what is required to be produced by the candidate along with the nomination is only a copy of the electoral roll of the Constituency where he/she is an elector or the relevant part thereof, and that they have complied with the said requirement. Similarly, having regard to the peculiar facts of this case, there is also force in the contention that the impugned decision is vitiated by malice. However, the contentions aforesaid would assume relevance only if it is found that the writ petitions are maintainable. I shall,
25786 of 2020 10 therefore, proceed to consider the contention of the respondents as regards the maintainability of the writ petitions.
8. Unlike a case where election takes place even after rejection of nomination of one of the candidates, this is a case where rejection of the nomination papers of the petitioners has resulted in the
declaration that the third respondent is duly elected and therefore, what is under challenge in the writ petitions is the election of the third respondent itself.
9. As noted, the contention as to the maintainability of the writ petitions is raised, based on Article 243-O of the Constitution which reads thus: “243-O. Bar to interference by Courts in electoral matters.- Notwithstanding anything in this Constitution,-
(a) the validity of any law relating to the
delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to be made under article 243K, shall not be called in question in any court;
(b) no election to any Panchayat shall be called in question except by an election petition presented to such authority and in such manner as is provided for by or under any 25786 of 2020 11 law made by the Legislature of a State.”
There cannot be any doubt at all to the position that the provision aforesaid bars proceedings calling in question an election except by an election petition presented to such authority and in such manner as is provided for by or under any law made by the Legislature of the State. As pointed out by the learned counsel for the petitioners, in Mohinder Singh Gill, the Apex Court has held that what is banned in terms of Article 243-O(b) is not anything whatsoever done, or directed by the Election Commission, but everything the Election Commission does or directs in furtherance of the election, not contrariwise. The relevant passage in paragraph 34 of the decision of the Apex Court in Mohinder Singh Gill reads thus:
“But what is banned is not anything whatsoever done or directed by the Commissioner but everything he does or directs in furtherance of the election, not contrarywise. For example, after the President notifies the nation on the holding of elections under Section 15 and the Commissioner publishes the calendar for the poll under Section 30, if the latter orders Returning Officers to accept only one nomination or only those which come from one party as distinguished from other parties or independents, is that order immune from immediate attack. We
25786 of 2020 12
think not. Because the Commissioner is preventing an election, not promoting it and the Court's review of that order will facilitate the flow, not stop the stream. Election, wide or narrow be its connotation, means choice from a possible plurality, monolithic politics not being our genius or reality, and if that concept is crippled by the Commissioner's act, he holds no election at all.”
In Ashok Kumar, after taking note of the decision in Mohinder Singh Gill, the Apex Court held that without interrupting or obstructing or delaying the progress of the election proceedings, judicial interference is permissible to remove the obstacles of the election. Paragraph 32 of the judgment in Ashok Kumar reads thus:
“32. For convenience sake we would now generally sum up our conclusions by partly restating what the two Constitution Benches have already said and then adding by clarifying what follows therefrom in view of the analysis made by us hereinabove:
(1) If an election, (the term election being widely
interpreted so as to include all steps and entire proceedings commencing from the date of notification of election till the date of declaration of result) is to be called in question and which questioning may have the effect of interrupting, obstructing or protracting the election proceedings in any manner, the invoking of judicial remedy has to be postponed till after the completing of proceedings in elections.
25786 of 2020 13
(2) Any decision sought and rendered will not amount
to “calling in question an election” if it subserves the progress of the election and facilitates the completion of the election. Anything done towards completing or in furtherance of the election proceedings cannot be described as questioning the election.
(3) Subject to the above, the action taken or orders
issued by Election Commission are open to judicial review on the well-settled parameters which enable judicial review of decisions of statutory bodies such as on a case of mala fide or arbitrary exercise of power being made out or the statutory body being shown to have acted in breach of law.
(4) Without interrupting, obstructing or delaying the
progress of the election proceedings, judicial intervention is available if assistance of the court has been sought for merely to correct or smoothen the progress of the election proceedings, to remove the obstacles therein, or to preserve a vital piece of evidence if the same would be lost or destroyed or rendered irretrievable by the time the results are declared and stage is set for invoking the jurisdiction of the court.
(5) The court must be very circumspect and act with
caution while entertaining any election dispute though not hit by the bar of Article 329(b) but brought to it during the pendency of election proceedings. The court must guard against any attempt at retarding, interrupting, protracting or stalling of the election proceedings. Care has to be taken to see that there is no attempt to utilise the court's indulgence by filing a petition outwardly innocuous but
25786 of 2020 14
essentially a subterfuge or pretext for achieving an ulterior or hidden end. Needless to say that in the very nature of the things the court would act with reluctance and shall not act, except on a clear and strong case for its intervention having been made out by raising the pleas with particulars and precision and supporting the same by necessary material.”
In Manda Jaganath, referring to Mohinder Singh Gill, the Apex Court has clarified the position further that the errors that could be corrected by judicial intervention while the election is in progress are errors of the nature that interfere with the free flow of the scheduled election or hinder the progress of the election. Paragraph 18 of the
judgment in Manda Jaganath reads thus:
“18. Of course, what is stated by this Court hereinabove is not exhaustive of a Returning Officer's possible erroneous actions which are amenable to correction in the writ jurisdiction of the courts. But the fact remains that such errors should have the effect of interfering in the free flow of the scheduled election or hinder the progress of the election which is the paramount consideration. If by an erroneous order conduct of the election is not hindered then the courts under Article 226 of the Constitution should not interfere with the orders of the Returning Officers, remedy for which lies in an election petition only.”
25786 of 2020 15
The contention of the petitioners in essence is that the decision impugned in the writ petitions is not one taken by the Returning Officer in furtherance of the election, but to stultify the election and therefore, the bar under Article 343-O(b) does not apply. The pointed question therefore, is as to whether the case on hand makes out a case for interference at the intermediate stage of the election.
10. In N.P. Ponnuswami v. The Returning Officer, Namakkal Constituency, Namakkal, Salem District, AIR 1952 SC
64, a bench of the Apex Court consisting of 6 learned judges considered the scope of the expression “no election shall be called in question” contained in the identical provision in Article 329(b) of the Constitution dealing with election to the Parliament and State Legislatures, in the context of a challenge against the decision of the
Returning Officer in rejecting the nomination of a candidate. It was held
by the Apex Court in the said case that the scheme of the Constitution as also the scheme of the Representation of the People Act containing the pari materia provisions as in the Act providing for an election petition, do not contemplate two attacks on matters connected with election proceedings, one while they are going on by invoking the 25786 of 2020 16
extraordinary jurisdiction of the High Court under Article 226 of the Constitution and the other after they have been completed, by means of the election petition and that the scheme of the constitutional and statutory provisions is that any matter which has the effect of vitiating an election should be brought up only at the appropriate stage in an appropriate manner before the special tribunal and should not be brought up at an intermediate stage before any court. The Apex Court has held so, also having regard to the principle that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of. The relevant passages of the judgment contained in paragraphs 9 and 12 read thus:
“9. The question now arises whether the law of elections in this country contemplates that there should be two attacks on matters connected with election proceedings, one while they are going on by invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution (the ordinary jurisdiction of the courts having been expressly excluded), and another after they have been completed by means of an election petition. In my opinion, to affirm such a position would be contrary to the scheme of Part XV of the Constitution and the Representation of the People Act, which, as I shall point out later, seems to be that any matter which has the effect of vitiating an election should be brought up only at the
25786 of 2020 17
appropriate stage in an appropriate manner before a Special Tribunal and should not be brought up at an intermediate stage before any court……” xxxxxx “12. It is now well-recognized that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of…..”
It is seen that the aforesaid propositions have been laid down by the Apex Court having regard to the fact that in a country with a democratic constitution in which legislatures have to play a very important role, it will lead to serious consequences, if the elections are unduly protracted or obstructed on account of judicial interference in
the intermediate stage of the election. In other words, the view expressed in the said case is that howsoever erroneous or howsoever malicious the decision of the Returning Officer in rejecting the nomination be, judicial intervention is not contemplated against the same at the intermediate stage of the election.
11. All the decisions relied on by the learned counsel for the petitioners in support of the proposition that judicial intervention is permissible at the intermediate stage of the election are decisions 25786 of 2020 18 rendered by Benches of lesser strength when compared to the decision in N.P. Ponnuswami. Further, N.P. Ponnuswami is a case where the
question whether judicial intervention is permissible at the intermediate stage of the election has been considered in the context of the decision of the Returning Officer in rejecting the nomination of a candidate, and the decisions relied on by the petitioners are not cases where the issue was considered in the context of the decision of the Returning Officer in rejecting the nomination of candidates. If a latter bench of the Apex Court of lesser strength referred to a former decision rendered by a bench of the Apex Court of greater strength, according
to me, the latter decision needs to be understood in a manner consistent with the decision of the former bench. Mohinder Singh Gill is a decision rendered referring to N.P. Ponnuswami, and Ashok Kumar is a decision rendered referring to both N.P. Ponnuswami and Mohinder Singh Gill. Likewise, Manda Jaganath is a decision rendered referring to both N.P. Ponnuswami and Mohinder Singh
Gill. If the decisions of the Apex Court relied on by the learned counsel for the petitioners is understood in the light of N.P. Ponnuswami, the only inference possible is that a decision of the Returning Officer in rejecting the nominations of all candidates except 25786 of 2020 19
one or two cannot be regarded as an error that interferes with the free flow of the scheduled election or hinders the progress of the election, especially when the right to challenge an election on the ground of improper rejection of nomination is only a statutory right and the statute has prescribed a forum for enforcing the said right.
12. In the light of the foregoing discussion, I am of the
view that the writ petitions are not maintainable. Insofar as it is found that the writ petitions are not maintainable, it is unnecessary to consider the merits of the matter especially when the petitioners have a statutory remedy against the decision of the Returning Officer which is impugned in the writ petitions.
In the result, the writ petitions are dismissed. Sd/- P.B.SURESH KUMAR, JUDGE ds 16.12.2020 25786 of 2020 20 APPENDIX OF WP(C) 25768/2020 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ELECTION NOTIFICATION NO.308/2020/CEK DATED 12.11.2020 ISSUED BY THE 3RD RESPONDENT. EXHIBIT P2 TRUE COPY OF THE ORDER BEARING NO.ARO-G RESPONDENT. EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 20.11.2020 SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT. EXHIBIT P4 TRUE COPY OF THE SAID ORDER NO. R.O KAINAKARI 2020 DATED 21.11.2020 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF THE RELEVANT PORTION OF
THE VOTERS LIST PERTAINING TOT HE CONSTITUENCY 03-KUTTAMANGALAM(WARD NO.3) OF KAINAKARY GRAMA PANCHAYATH DULY ATTESTED BY THE ASSISTANT RETURNING OFFICER. EXHIBIT P6 TRUE COPY OF THE NEWS ITEM REPORTED ON PAGE NO.4 OF MALAYALA MANORAMA DAILY DATED 21.11.2020 OF ALAPPUZHA EDITION. EXHIBIT P7 TRUE COPY OF THE ELECTION CERTIFICATE DATED 23.11.2020 ISSUED BY THE 1ST RESPONDENT DECLARING THE 4TH RESPONDENT ELECTED FROM THE 02-CHERUKALI KAYAL CONSTITUENCIES
25786 of 2020 21 RESPONDENT'S/S EXHIBITS: EXHIBIT R4(a): TRUE COPY OF THE DECLARATION OF ELECTION IN FORM 7. EXHIBIT R4(b): TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER, DECLARING HIS ELECTION. 25786 of 2020 22 APPENDIX OF WP(C) 25786/2020 PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE APRT II OF THE ELECTORAL ROLL OF WARD NO. 3 OF THE KAINAKARY GRAMA PANCHAYATH EXHIBIT P2 A TRUE COPY OF THE RECEIPT DATED 19-11-2020 ISSUED TO THE PETITIONER. EXHIBIT P3 A TRUE COPY OF THE ORDER DATED NIL PASSED BY THE 2ND RESPONDENT EXHIBIT P4 A TRUE COPY OF THE PETITION DATED 20-11-2020 SUBMITTED BY THE PETITIONER. EXHIBIT P5 A TRUE COPY OF THE ORDER DATED 21-11-2020 PASSED BY THE 2ND RESPONDENT EXHIBIT P6 A TRUE COPY OF THE REPORT PUBLISHED IN MATHRUBHOOMI DAILY DATED 21-11-2020 EXHIBIT P7 A TRUE COPY OF THE CERTIFICATE DATED RESPONDENT. RESPONDENT'S/S EXHIBITS: EXHIBIT R3(a): TRUE COPY OF THE DECLARATION OF ELECTION IN FORM 7. EXHIBIT R3(b): TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER, DECLARING HIS ELECTION.